As the Biden administration reengages with the global community, it faces tough decisions about how to deal with the remnants of former President Donald Trump’s foreign policy, including sanctions imposed on staff of the International Criminal Court in The Hague.
The sanctions were a response to the ICC’s investigation of possible war crimes by US forces in Afghanistan. Prominent groups are calling on the Biden administration to lift those sanctions. But one of America’s close allies — Israel — is asking the new president to keep them in place.
Biden’s State Department says the sanctions are under review.
“I don't need the Biden administration to love the fact that US actors are being investigated for crimes against humanity and war crimes. But what I do want to see is my government not obstructing justice."
“I don't see what there is to review. This executive order needs to be rescinded now. It needed to be rescinded a month ago,” said Katherine Gallagher, a lawyer with the Center for Constitutional Rights. “I don't need the Biden administration to love the fact that US actors are being investigated for crimes against humanity and war crimes. But what I do want to see is my government not obstructing justice,” she said.
The ICC is a court of last resort for crimes against humanity — meaning it takes up issues that it decides have not been adequately addressed by countries in their own national courts.
In March 2020, ICC judges decided the US had not suffficiently investigated itself for possible war crimes and torture in Afghanistan. The US isn’t a party to the treaty that created the ICC, but Afghanistan is. So the court’s judges decided to authorize the ICC’s prosecutor, Fatou Bensouda, to start an investigation. In response, the Trump administration placed sanctions on Bensouda and her staff.
“It gives us no joy to punish them,” then-Secretary of State Mike Pompeo said in June 2020. “But we cannot allow ICC officials and their families to come to the US to shop, travel and otherwise enjoy American freedoms as these same officials seek to prosecute the defenders of those freedoms.”
The administration’s action against ICC personnel was widely criticized.
But now there’s more at stake: earlier this month, ICC judges ruled that the court has jurisdiction over the Palestinian territories, and Bensouda could elect to investigate war crimes in the Gaza Strip and West Bank. The ruling was a response to a request by Palestinians representing the state of Palestine, which is recognized as a member of the ICC.
“When the ICC investigates Israel for war crimes, this is pure anti-Semitism,” Israeli Prime Minister Benjamin Netanyahu said, calling the decision by the ICC “a perversion of justice.”
Netanyahu pointed out that Israel, like the US, isn’t a party to the treaty that established the court, and doesn’t consider itself to be under its jurisdiction. The US agrees: the State Department said it has "serious concerns" about the ICC’s ruling. “We do not believe the Palestinians qualify as a sovereign state,” it said in a statement. Therefore, the reasoning goes, the Palestinian territories have no standing with the ICC.
“It's not what I would want to see from an administration that has held out as one of its priorities, human rights, that has said it wants to reengage in the ‘international legal world order,’” Gallagher said. “So this is not in line with its stated principles, its stated priorities.”
But many Israelis are firm in their belief that the international legal world order is deeply flawed.
“Israelis always feel like we're under attack from the UN and from international bodies. ...And people are always going after us as opposed to other places where, you know, human rights issues are much more intense and more horrible.”
“Israelis always feel like we're under attack from the UN and from international bodies,” said Anne Herzberg of NGO Monitor, a Jerusalem-based research institute. “And people are always going after us as opposed to other places where, you know, human rights issues are much more intense and more horrible.”
With this decision, the ICC could also investigate war crimes committed by Palestinians. But Herzberg, who filed an amicus brief in the ICC’s case on the Palestinian territories, said this issue feels personal for Israelis because almost everyone in Israel has to serve a stint in the military. So there’s a remote possibility any of them could be arrested if there is an ICC investigation.
“It's a lot different when, hey, it could be my uncle or my neighbor, my son that could potentially be at risk,” she said.
Still, US sanctions on the ICC must end, said Stephen Rapp, who represented the US at the ICC for six years as President Barack Obama’s ambassador-at-large for war crimes. He said the sanctions imposed by the Trump administration are inappropriate and unprincipled.
“Using this tool of threat — and threatening — is like holding a gun to a judge's head. It's an ineffective tactic and it's a counterproductive one."
“Using this tool of threat — and threatening — is like holding a gun to a judge's head. It's an ineffective tactic and it's a counterproductive one,” Rapp said. “And that's the position that we should take with Netanyahu: ‘We have your back. But that doesn't mean that we're going to engage in extortion on your behalf. We're going to use the powerful tools that we have to to protect you.’”
It might not be necessary for the US to protect Israel in this matter. ICC prosecutor Bensouda hasn’t opened a case against Israelis, and may not because she’ll soon be replaced with a newly elected prosecutor. As for the Biden administration, Rapp said it needs to show the court that the US has already sufficiently investigated itself for atrocities in Afghanistan. There haven’t been convictions, but Rapp said the ICC doesn’t require them.
“Obviously, we need to hold our people to account. And there were some processes that did that. They weren't perfect, but I think they passed muster,” he said. “That's what this comes down to.”
If the ICC still decides the US’s internal investigation wasn’t good enough, Rapp said, the US can always go back and investigate further.